Web ad blocking may not be (entirely) legal

November 13, 2007 by Helen Voudouris

Legal experts have recently made speculations regarding the blocking of
internet pop-up advertisements, and have hypothesized that these
web-browser plug-ins may be illegal. Any lawsuit commenced by advertisers
would likely involve two arguments: the first one based on copyright
infringement through derivative works and secondly, the violation of a
website’s terms of agreement.

The issue arises because internet users are not merely ignoring these
advertisements, but rather have employed the use of a third party. As the
popularity of these ad-blockers increases, publishers argue that their
profits will deplete. This profitability argument is based on the claim
that pop-ups “work”. However, this was refuted in a survey conducted in
2004 by a UK-based web consultancy, which determined that 90% of users who
clicked on a pop-up ad were trying to get rid of them and had accidentally
clicked through them.*

The advertisers’ argument regarding derivative works would likely be
based on the 2003 Aimster** appeal court decision which concluded that
commercial skipping reduces the copyright owner’s income because it
creates a commercial free copy. This suggests that advertisements are
fused into the television program, or in this case, the content of the
website, thus creating one expression. If this is correct, then websites
could sue each other for infringement when the same advertisements are
utilized on numerous websites. However, most pop-up advertisements are not
contained within the html document itself, but are separate files.
Therefore, the argument that a derivative work is created when an
advertisement is blocked loses sight of the most basic requirement of
copyright law—expressions must be fixed. If advertisements and the website
on which they appear are two separate works that were never fused into one
artistic creation, then accordingly fixation could not have occurred.

Furthermore, when internet content is accessed, an additional copy is made
in the RAM of the recipient’s computer. Therefore two separate actions
occur: a copy is made and an ad is blocked. Once the end user has a copy,
ad-blocking is part of the user’s bundle of rights, and therefore a user
should be entitled to restrict what he views from his own personal copy.
For example, if advertisements were contained in the outer-margins of
newspapers, and a purchaser subsequently removed them, it is difficult to
argue that this would not be within his rights to do.

Commercial skipping can also be distinguished from ad-blocking on the
basis that the pop-ups actually block the user from viewing content unless
the user clicks on the close button or waits for their conclusion. This
would be comparable to an advertisement materializing during a television
program, rather than during the regular commercial intervals, during which
viewers are entitled to channel-surf or leave for their duration.
Television advertising thus minimizes the disruption caused to viewers.
More efficient and less interfering means of internet advertising can
occur through links or advertisements that appear on the margins of
websites.

Pop-up advertisements are notorious for carrying spyware or malware so
that when the user clicks on it, these are installed on their computer.
These ad-blockers therefore provide an additional service by keeping users
safe from potentially dangerous activity, comparable to programs used by
parents that block websites deemed by a third party to be inappropriate
for children. Unless the industry regulates pop-ups, then users are
rightfully justified in utilizing programs that assist in blocking them.

The terms contained on websites’ clickwrap agreements, would likely be
binding as long as they are clear, fair and noticeable, so that users
would be aware of the terms contained therein. However, this would inhibit
the efficiency of the internet if users were constantly inundated with
them. Users would become so desensitized that they would never read them,
resulting in a dangerous perception that legal agreements are trivial.
Moreover, due to the unpopularity of pop-ups, websites that prohibit
ad-blockers may experience a decline in traffic and, therefore, loss in
advertising revenue when similar websites emerge that permit their use.

While internet users that employ the use of ad-blockers may be infringing
copyright or may technically be in breach of contract, the unregulated
internet environment makes advertisements potentially dangerous to its
users. Furthermore, because pop-ups and website content are two separate
documents, when these programs block ads, the user is merely exercising
his right to control what content he views. Therefore, we need to ask
ourselves, how much do we as a society want to allow advertisers and
copyright holders to control what we watch and also what we do not watch?

*Adam L. Penenberg. Media Sites: Say No to Pop-Up
http://www.wired.com/culture/lifestyle/news/2005/03/66764

**In re Aimster Copyright Litigation 334 F.3d 643 (7th Circ. 2003)